The size of the British opt-outs

The British government is currently preparing the negotiate further opt-outs of the UK in order to find a new status in the EU that wins the support of the British people. But already the United Kingdom is the country that is most detached from the core of EU integration, most notably of course by staying outside of the Eurozone. The next step will be using an opt-out clause out of large parts of the EU’s justice and home affairs policies. For an article I am writing on the future prospects of the UK in the EU, I therefore wanted to know, how far has the UK already distanced itself from the EU? And in what extent has it made use of its opt-in rights?

First, in terms of the overall scope of policy areas, it is clear that the UK is the EU country with the highest overall number of opt-outs and special clauses. They currently scope to four main areas: The first one is of course the monetary union, on which the UK has the only permanent opt-out next to Denmark. In recent years, this has extended to all forms of closer economic integration surrounding the Eurozone, e.g. the Euro Plus Pact, the Fiscal Compact or the banking union currently being set up. The next one is Schengen and the free movements of persons. This is closely connected to the opt-out out of parts of justice and home affairs policy (Area of Freedom, Security and Justice or AFSJ in EU-speak), which is likely to be extended in 2014. Finally, with the Lisbon Treaty the UK has also secured an opt-out from Charter of Fundamental Rights. All in all, these are quite substantial policy opt-outs. In particular if we look at the high profile topics debated within the EU of the last couple of years – the European debt crisis, migration issues, closer economic coordination – the UK is an outsider to the majority of them.

On second sight, however, if we look at the actual EU legislation being adopted, the size of the British opt-outs seems to be much smaller. Taking the figures from Eur-Lex, since the entry into force of the Lisbon Treaty (Dezember 2009 – July 2013) the EU institutions have adopted or amended some 384 directives and over 5000 regulations. However, the UK’s opt-outs fall mainly in areas where the EU does adopt little or only targeted legislation. In effect, less than a hundred legislative acts of the last four years did not have an effect on the UK. These were mostly evenly divided between monetary policy, economic policy specifically targeted towards the Eurozone, as well as the AFSJ and Schengen. In the ‘maschine room’ of the EU, the UK is thus for the most part still taking part in decision-making and being affected by EU legislation.

Table 1: The scope of the British opt-outs (12/2009-7/2013)

Policy Areas

Acts

UK Opt-Outs

UK Opt-Ins

Irish Opt-Outs

Irish Opt-Ins

Monetary Policy

6

6

Economic Policy

27

8

AFSJ

19

7

12

8

11

Schengen

14

10

4

11

3

Source: Own research within Eur-lex database.

Even more interesting is the willingness of the UK government to make extensive use of the opt-in clauses granted within the AFSJ and Schengen, by which the UK can take part in single legislative acts. In fact, over the course of the last three years the government has decided to take part in over 60 per cent of new AFSJ measures despite the rhetoric of wanting to distance itself from further EU cooperation. This is true to a lesser extent for Schengen, where the UK does indeed pass upon the majority of legislative acts passed. Particularly striking for me is the comparison to Ireland, which enjoys the same opt-out/opt-in terms from AFSJ and Schengen as the UK. In most cases, due to the common border the two countries have used opt-out and opt-ins in parallel. Overall, in both AFSJ and Schengen the Irish uses of opt-ins was a little smaller.

In conclusion, even a UK government under severe pressure from Eurosceptic forces seems to see the practical need to join European cooperation in such cross border issues. However, the high profile opt-outs from the main political questions dominating the future of the European project, put more and more question marks on the importance of the UK sitting at the top table. Finally, the current size of the opt-outs shows how significant the current move to retreat from over a hundred AFSJ measures is. New high profile opt-outs like from the Fiscal Compact or the Banking Union further cement this development. Even before the planned renegotiation of the current British government, despite the use of opt-ins, the UK has already become a permanent outsider to a significant part of EU policy-making.